McAtee, R (On the Application Of) v The Secretary of State for Justice

For the purposes of Senior Courts Act 1981, s 18, “criminal cause or matter” has a broad meaning, but each case requires careful appraisal of the nature and subject matter of the underlying litigation. A challenge to an indeterminate licence regime imposed by statute as part of an imprisonment for public protection sentence concerns the sentence itself, not its administrative aftermath. The form of relief, including a declaration of incompatibility, does not determine the issue. A genuinely collateral application may fall outside the phrase, but a challenge to the legality of the sentencing regime does not. The Court of Appeal therefore had no jurisdiction.

Jeffrey Lee challenged the statutory requirement that an imprisonment for public protection licence remain in force for at least ten years. The Divisional Court dismissed his claim: [2013] EWHC 4483 (Admin). Lee’s appeal was later dismissed for want of progress. Paul McAtee, who was subject to the same statutory regime, sought to be substituted as appellant and to obtain an extension of time and permission to appeal.

The Court of Appeal had first to determine whether the judicial review proceedings were a criminal cause or matter under s 18 of the Senior Courts Act 1981. The central issue was whether a challenge to the statutory licensing provisions was a challenge to the administration of a sentence or to an integral part of the sentence itself.

The court dismissed the applications because they concerned a criminal cause or matter and the Court of Appeal had no jurisdiction to entertain them.

1. Applicable approach. The expression “criminal cause or matter” must be given a broad meaning, but the issue requires a careful individual appraisal. The court must examine the nature and character of the underlying litigation and its legal subject matter. A connection with criminal proceedings is insufficient by itself. A genuinely collateral application may fall outside the expression, as illustrated by the document-disclosure application in R (Guardian News and Media Ltd) v City of Westminster Magistrates Court [2011] 1 WLR 3253 and recognised in R (Belhaj) v Director of Public Prosecutions (No 1) [2018] 3 WLR 435.
2. Application to the licence regime. The challenge was directed to s 31A of the Crime (Sentences) Act 1997, which governed the duration and termination of an IPP licence. The licence regime was a fundamental part of the sentence. It imposed an ongoing restriction on liberty, formed part of public protection and risk management, and arose automatically because the Crown Court had imposed an IPP sentence. It was therefore not merely the executive administration of an otherwise completed sentence.
3. Form of relief. The fact that the claimant sought a declaration of incompatibility did not alter the character of the proceedings. Jurisdiction depended on the underlying subject matter, not on the immediate form of relief or the possibility that legislative change might follow.
4. Related authorities and disposal. The court rejected the proposed punishment-based approach associated with R v Southampton Justices, ex parte Green [1976] QB 11. Earlier Court of Appeal decisions were not necessarily inconsistent because they concerned different statutory regimes or had proceeded without argument on jurisdiction. The court declined to grant permission merely to facilitate a further appeal. The applicant remained free to bring fresh judicial review proceedings in the Administrative Court.

• Court of Appeal (Civil Division) held that the applications were in a criminal cause or matter and declined jurisdiction under s 18 of the Senior Courts Act 1981.
• Divisional Court dismissed Lee’s judicial review claim concerning the ten-year IPP licence requirement on 6 December 2013: [2013] EWHC 4483 (Admin). Permission to appeal was initially refused.
• Subsequent procedural history Lee’s appeal was dismissed by the Master on 22 August 2016 for lack of progress. McAtee then sought substitution, an extension of time and permission to appeal. Irwin LJ referred the jurisdiction issue to the full Court of Appeal.